Argument preview: High-tech policing

Posted Sat, November 5th, 2011 12:03 am by Lyle Denniston

At 10 a.m. next Tuesday, the Supreme Court will return to the constitutional status of advanced technology, when used by police to investigate crime. The case is United States v. Jones (docket 10-1259). Arguing for the federal government will be Deputy Solicitor General Michael R. Dreeben. Representing a District of Columbia man, Antoine Jones, whose conviction for drug trafficking was overturned by a lower court, will be Stephen C. Leckar, of the Washington, D.C., law firm of Shainis & Peltzman.

Background

For more than eight decades — that is, at least since its ruling in 1928 in Olmstead v. U.S. involving a telephone wiretap — the Supreme Court has been pondering whether advancing technology can be used by police to pursue criminal suspects, without violating the guarantee of privacy in the Constitution’s Fourth Amendment. The line of decisions does not proceed in one direction only, but there is now a basic principle that governs each new advance in what might be called the machinery of detection. The Court is about to test that principle again, as it takes its first look at a highly revealing, new form of electronic surveillance.

The constitutional principle that may well govern is that the Fourth Amendment is violated if police use a technique or device that invades an individual’s “legitimate expectation of privacy,” and do it without a court-approved warrant. That is determined by the answer to two queries: does the individual personally expect to keep private what the police want to observe, and, is that an expectation that society as a whole would regard as “reasonable.”

Over the years, the Court has been quite willing to accept that there is an “expectation of privacy” when the police want to monitor something that is going on inside a home or even inside such a “private” place as a telephone booth when the caller has closed the door to the rest of the world. It has been decidedly less willing to acknowledge a claim of privacy when it occurs out in the open — and it usually has treated being in a car or truck as being out in the open. The Supreme Court said flatly in a 1983 case: “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” And that is a notion that reaches back at least as far as Prohibition days, and a 1925 Supreme Court ruling allowing federal liquor police to search a bootlegger’s car without a warrant (Carroll v. U.S.).

Now, the Court is set to examine the two concepts together — using advanced technology, and using it to monitor a vehicle moving about on the streets. And a key issue before the Justices, in the case of U.S. v. Jones, is whether the Court really meant it when it said so decisively in 1983 that a car moving on public streets simply does not implicate any privacy concerns, and, if it did, might its view change if the police observed those movements using a new and more efficient monitoring technology — the Global Positioning System, linked to 25 satellites orbiting the earth.

The 1983 decision — very much at the center of discussion as lawyers prepared this year’s case, U.S. v. Jones — came in the case of U.S. v. Knotts. There, narcotics investigators in Minneapolis put a radio transmitter (a “beeper”) inside a large chemical container that was picked up by a suspect who was unaware of the device’s presence, and the investigators then monitored the electronic signals until the officers were led to a place where the container wound up: a cabin being used to make illegal drugs. The Supreme Court unanimously rejected a Fourth Amendment challenge to police monitoring the airwaves, at least for the single, specific trip that the car made while carrying the container.

The police, the Court’s main opinion said, could have observed the same movements of the car by following it themselves and using their own eyes. The Court added: “Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.” The opinion, however, later added a qualifier: if police were to use a “dragnet-type law enforcement practice,” involving 24-hour surveillance of a private individual’s movements, “there will be time enough then to determine whether different constitutional principles may be applicable.”

A year after that ruling, the Court, in the case of U.S. v. Karo, found no constitutional problem with the initial installation without a warrant of a “beeper” used the same way as in the Knotts case. The Court also decided, in Karo, that monitoring of the device over a period of several months was not a Fourth Amendment violation — so long as the tracking was done when the vehicle containing the device was outside of a private home.

The new GPS case before the Court is a test of whether Knotts and Karo apply to a new technology, potentially giving the police more than they could get from a “beeper” — a complete and exceedingly precise log of all of a vehicle’s movements for weeks on end.

First, a note on what Global Positioning System technology is. It is an electronic means of determining one’s location on the face of the earth, by indicating the point where latitude and longitude lines intersect — familiar to anyone who has ever navigated on a boat. The receiver gets latitude and longitude readings from 25 satellites that were placed in orbit by the Pentagon in 1978. On average, a GPS receiver can pinpoint its own location within 15 meters, or about 50 feet. The System was first developed by the U.S. military, but became available for civilian use in the 1980s. However, accurate and dependable transmissions have been available for civilian use only since 2000. Access to the system is free, for anyone who can afford to buy a receiver. Over time, the prices of receivers have come down, and they are now in very wide use, particularly for motorists using the system in place of paper maps (or, for mariners, in place of paper charts or the more traditional sextants that provide navigation from sun, moon, stars and planets).

One of the most attractive features of a GPS receiver is that, if it has a working power source (a battery or an electronic hookup), it can work in any weather conditions, anywhere in the world, and for 24 hours a day. It is obvious, then, why it has become a popular crime-investigating tool for police. Attached to a vehicle, and monitored from a good distance away, it tracks every place that the vehicle has visited for as long as the device is in place. The police can then create a map of those places, and reconstruct quite reliably what was happening at each spot.

A joint federal-local “safe streets” task force in Washington, D.C., saw the advantages of GPS technology during a drug trafficking investigation of Antoine Jones and Lawrence Maynard, managers of a nightclub named “Levels” in the capital city. Using a variety of techniques, as well as visual surveillance, police included a GPS device in their monitoring. In 2005, they obtained a warrant from a federal judge to secretly install and monitor the device on a Jeep Cherokee registered in the name of Jones’s wife, but used mainly, police believed, by Jones himself.

The warrant allowing installation was to last for ten days, and was to be used only within the city of Washington. But police did not get the device installed until a day after the warrant had expired, putting it on the underside of the vehicle while it was parked in a public lot — not in D.C., but in Maryland. When the device’s battery appeared to be running down, police secretly replaced it while the vehicle was in another Maryland parking lot. It transmitted its data to agents using a cellphone connection. Police monitored the Cherokee’s movements for 28 days, although the device was in “sleep mode” when the vehicle was stopped. (The GPS pursuit was of Jones, only; it was not an issue in the successful federal prosecution of Maynard, and he is not involved in the Supreme Court case.)

After Jones was charged with conspiring to distribute cocaine and cocaine base, plus using a telephone to carry out drug trafficking, Jones’s lawyers sought before the trial to block the use of the tracking data from the GPS device. A federal judge, citing the Knotts and Karo decisions of the Supreme Court, admitted the data gathered while the Cherokee was on the public roads, but not while the vehicle was in Jones’s garage next to his home. That case ended in a mistrial after the jury could not agree on a verdict on conspiracy, and found Jones not guilty on the other charges.

Put on trial again on a new charge, a single trafficking conspiracy count, with the same GPS tracking data allowed as evidence, Jones was convicted. The GPS evidence apparently was critical to the prosecution, because the data provided the one link to an alleged drug “stash house” in a Washington, D.C., suburb in Maryland. Led to that house, agents had retrieved a big supply of powder and crack cocaine, plus $850,000 in cash. Jones was sentenced to life in prison and ordered to forfeit $1 million that the government said were proceeds of his drug trafficking.

The D.C. Circuit Court, however, overturned the conviction, concluding that the prolonged use of the GPS tracking without an authorizing warrant violated the Fourth Amendment. It ruled that the tracking intruded on Jones’s expectation of privacy. Applying the Fourth Amendment principle laid down by the Supreme Court, the Circuit Court rejected the prosecutors’ contention that the Knotts decision had authorized warrantless searches via a tracking device any time that an individual operated a vehicle containing such a device, while on a public road or highway. Knotts, it said, involved a single journey, while the Jones case involved what amounted to a “dragnet-type” of pursuit.

The Circuit Court conceded that other federal appeals courts had ruled that police use of a GPS device even for prolonged monitoring did not amount to a search covered by the Fourth Amendment. The D.C. Circuit said the individuals on those cases had not challenged the prolonged nature of the tracking.

Jones, it said, had not exposed all of his movements over a month to public view, because there is little or no likelihood that a stranger would observe all of the movements throughout the period. And, it said, prolonged monitoring is more intrusive on privacy, because it builds up a log of what a person does over and over again, what the person does not do, and what the person does in one movement as linked to another. There is a distinction, the Circuit Court commented, between monitoring “a day in the life and a way of life,” and Jones was monitored for the latter.

Thus, the Circuit Court was satisfied that Jones individually felt that his movements taken together were private. It then moved on to the second question, and concluded that society as a whole respects that expectation of privacy. It noted that seven states had passed laws requiring police to get a warrant before they do GPS tracking.

The Circuit Court refused 5-4 to reconsider, before an en banc court, and the Justice Department in April took the case on to the Supreme Court.

Petition for Certiorari

The government raised the sole issue of whether it violated the Fourth Amendment for police to use “a tracking device” to monitor Jones’s vehicle as it moved “on public streets.” The petition relied heavily upon the Court’s statement in the Knotts case that there is no expectation of privacy when one travels on “public thoroughfares” and moves from place to place. It also relied on the split in the Circuit Courts, with two and perhaps three others concluding that such monitoring was not a search under the Fourth Amendment.

In addition, the petition argued that, if such surveillance is treated (wrongly, it said) as a search, the way it was done in Jones’s case was reasonable, and therefore not a violation of the Fourth Amendment.

Reacting to the Circuit Court conclusion that a GPS device was different, constitutionally, from a “beeper” as in the Knotts case, the government said that does not change the analysis. Again, it relied upon language in the Knotts opinion saying that the improved efficiency for police of new devices does not make a constitutional difference.

Further urging review, the petition said that the question at issue “is critically important to law enforcement efforts throughout the United States.” The D.C. Circuit’s analysis, it said, could not be confined to GPS technology alone, and would affect other investigative techniques. If the Circuit Court was right that the prolonged nature of the track was the constitutional problem, that could affect many techniques that are used over an extended period, such as prolonged visual surveillance.

Moreover, it argued, the government may not be able, early in a criminal investigation, to assemble enough information to justify getting a warrant to use a GPS device, so barring its warrantless use could risk removing the device from the police toolbox.

Jones’s lawyer sought to head off Supreme Court review, arguing that the lower courts were “only beginning to grapple with the Fourth Amendment implications of this powerful and fast-improving technology.” The response attempted to show that the D.C. Circuit decision in his favor was narrow in scope, and did not actually conflict with the decisions of other appeals courts. The ruling, it contended, was carefully limited to its facts, and closely followed the Supreme Court’s prior precedents.

This particular dispute, the Jones brief argued, was not settled by what the Court had said previously in Knotts and Karo, and the Circuit Court ruling definitely does not conflict with those rulings.

A coalition of conservative legal and cultural advocacy groups urged the Court to grant review of the case, not to uphold the government’s authority to use a GPS device without a warrant, but to cast aside the “reasonable expectation of privacy” standard and replace it with one that more assuredly would guarantee individual privacy. Th existing standard, the brief contended, gives judges too much discretion to balance away privacy interests.

The Court granted review on June 27, choosing the government petition over one filed by an Oregon man, Juan Pineda-Moreno (docket 10-7515), who had lost his challenge to a GPS search, with the Ninth Circuit Court ruling on the basis of the Knotts precedent. Even so, the Justices did agree to add to their review a separate issue fairly close to one that Pineda-Moreno’s counsel had raised: whether the initial installation of a GPS device, without a warrant and without the vehicle owner’s consent, itself amounted to a violation of the Fourth Amendment. The petition in Pineda-Moreno v. U.S. had raised that question, in addition to a challenge to the prolonged monitoring of such a device. (That petition also had asked the Court to rule on whether the entry onto private property to install the device amounted to a search. Such an entry was not made in the Jones case, and the Court did not agree to add it to that case.)

Merits Briefs

The Justice Department’s brief on the merits began with the expected heavy reliance upon the Knotts precedent, and its sweeping quotation about the lack of a privacy interest in moving about in a car in public. But it also undertook to challenge energetically the theoretical premises of the D.C. Circuit’s ruling.

The Supreme Court, the government brief said, has never applied a test on the expectation of privacy question that would turn on whether matters exposed to public view would actually be observed by anyone. The core of the exposure issue, it argued, is whether such public movements could have been observed, not whether it was likely to have been observed. It would simply be unworkable, the brief insisted, to have a rule that turned on the likelihood of whether public movements would be seen by a private observer. How, it wondered, would police know when a “likelihood” threshold had been crossed.

On the prolongation issue, the Department’s lawyers contended that there is no support in prior Court precedents for such a “mosaic” theory — that is, that a collection of observations adds up to something different from a narrower focus on just a few. If a person moves about in a car, thus exposing the movements of the vehicle to the public, that defeats any privacy expectation, it argued. Moreover, it insisted, the Karo decision undercut the prolongation issue. That concept, too, is unworkable, the brief said, since police could not predict when a continuation of tracking would yield more than a short-term surveillance.

Adding a new argument, the government brief said that police have not abused GPS technology, and so there is no need at this point to examine a claim of a “dragnet-type” of electronic monitoring.

Turning to the question the Court added, on the validity of the initial installation, the government argued that attaching the device by itself yields no information, and certainly nothing that is private. There is no such thing, it said, as a “potential invasion of privacy” under Fourth Amendment doctrine, so the attachment is not a search. Neither, the brief said, was it a “seizure,” because it took nothing from the car, relying on its own power source. At the most, it said, what the police did in putting the device on Jones’s Cherokee was “a technical trespass” on that part of the car — hardly enough to constitute a seizure.

Then, in conclusion, the brief suggested that, even if the use of the device would constitute a search or a seizure, it clearly was reasonable for the police to use it as they did, and the Fourth Amendment, indeed, focuses only on what is “reasonable.” The intrusion at issue, it said, is so insubstantial that police would not even need probable cause to install and monitor such a device, let alone needing a court-approved warrant. Balanced against any such intrusion, the brief remarked, is the value of GPS surveillance at early stages to help officers develop probable cause to proceed further against a suspect.

The merits brief for Antoine Jones opened with a fuller description of how the GPS system works, and added argument that the system has sometimes been abused by both civilians using it, and, “at least sometimes,” by law enforcement employment of it in criminal investigations.

In recounting the facts of the case, the brief somewhat exaggerated what the device had monitored, saying that it had tracked “Jones’s every move.” At most, what the device showed — even when showing it on an extended log — were the movements of the vehicle, with the data then transposed to a map to show what was at each location. Whether he was the driver every time the car moved would not have been shown, and what the driver, or passenger, did at each destination would not have been revealed. Any such information might have been uncovered by police visiting the locations later, and that, of course, might be regarded as an illegal “fruit” of the illegal search. That point, though, is not made in this case, although it clearly lurks in it.

The Jones brief, on the constitutional issues, began with the installation, treating that as a “physical intrusion” on private property secretly and without consent. Even this, it contended, helps support Jones’s argument that he did expect that his privacy would be respected. Violating private space on the sly, it suggested, indicates that police realize they are intruding.

Turning to the social threat it perceived in the use of GPS technology, the brief relied in part upon a comment by Ninth Circuit Judge Alex Kozinski in the Pineda-Moreno case, that “there is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of deja vu.” What can occur, the brief argued, is “indiscriminate and perpetual monitoring of any individual’s movements. It enables seamless monitoring of entire networks of individuals, political associations, even entire communities.” Beyond the threat to personal privacy, the brief asserted, is the threat “to expressive and political association.”

The technology itself, Jones’s lawyers contended, generates and then stores “a unique form and quality of data that was not exposed to the naked eye.” Data viewing is not the same thing as visual observation of a vehicle moving about, according to the brief.

Even if the Court were to conclude that installation and brief monitoring did not constitute a search under the Fourth Amendment, the brief said, it definitely becomes one when the government employs it over “a prolonged period of time.” No human being could see and store what a GPS device does over such a period, the document contended. If the Court wished to establish a “bright-line rule” on what constitutes a prolonged tracking, the brief said, it could put it at anything more than one day.

Answering the government argument that initial installation of the device was not a “seizure,” the brief said that what the narcotics investigators did was to “interfere in Jones’s possessory right to exclude others from using his vehicle for their own ends.” If a private individual were to install such a device on someone else’s private vehicle, the brief said, that would amount to a trespass, and might even be a criminal act.

Aside from the installation, the brief argued that the storage of the data from the tracking also amounted to a “seizure.”

To the government’s contention that it at least had a “reasonable suspicion” to justify its use of the GPS technology, Jones’s brief argued that the government had forfeited that argument in lower courts.

There is a stark imbalance in the amici filings in this case. A single such brief, from the Center on the Administration of Criminal Law, was filed in support of the government’s view that GPS technology does not implicate the Fourth Amendment. On the other side, there are a dozen briefs in support of Antoine Jones, ranging all across the ideological spectrum from the American Civil Liberties Union to the Gun Owners of America, and including organizations devoted mainly to exploring — and defending — electronic privacy rights.

Analysis

The Supreme Court has tended to move cautiously when asked to define the constitutional standards for judging new technology. Its own working knowledge of sophisticated new devices is not particularly impressive, so it tends to be cautious and to avoid pronouncing too broadly upon the constitutional implications. GPS technology is relatively new to the federal courts, and entirely new to the Supreme Court, so this initial encounter could turn into a fairly narrow decision.

If that turns out to be true, that would tend to favor the government position. Justice Department lawyers have gone to considerable lengths to suggest that GPS devices really do not penetrate deeply into private matters, but simply are augmenting what police could observe with their own eyes. It takes some effort at conjecture to see where this technology might be leading, although Jones and the amici supporting him have attempted, with some vigor, to describe a slippery slope cascading downward into a quite Orwellian future with the spread of GPS monitoring. If the Court is sympathetic to that kind of musing, it might well wish to start imposing some limits, though.

What the Justice Department is counting on most heavily is that the Court will see the case as involving little more than a narrow refinement of the Knotts case, and treat that 1983 decision — and its seemingly unqualified rejection of any concept of privacy in an auto or truck moving about on the public streets and highways — as controlling here. It has moved aggressively to discredit the idea that the length of time a GPS device is monitored makes this case different from Knotts, and to discredit the idea that the information gathered by a GPS device is far more intrusive than what police may gather with the kind of “beeper” used for months in the Karo case (and for a much more limited time in Knotts).

Secondarily, the government is counting on its own slippery-slope contention, that a check upon the use of a GPS device because it was used for a lengthy span of time is likely to undermine any prolonged investigative technique that police might adopt. Whether it can succeed in that may depend upon whether the Court looks upon GPS tracking as somehow unique as an information-gathering technique — as Jones’s lawyers would have the Court believe. On the surface of things, at least, a month of tracking GPS signals might seem like the same thing as a month of visually tracking a suspect, but on closer examination there is no doubt that there is a profound difference between the amount of manpower and resources needed for each, even if the data gathered may somehow be the same or nearly so.

It is not entirely clear why the Court has added to the decisional mix the potential Fourth Amendment implications of the initial installation of a GPS receiver. On one hand, that might be a signal that the Court sees this not only as an opening, but as a concluding, inquiry: if it should find that the installation itself is either a search or a seizure, and that a warrant is therefore required, there may be no need to go further in this case and define the parameters of privacy that could be impacted by the tracking itself, whether brief or prolonged. It is not uncommon for this Court, upon granting review, to spell out a question of its own, with that turning out, in the end, to be decisive.

On the other hand, the addition of this question may mean only that the Court wants to inquire into this kind of surveillance, end to end, so that it is more fully informed of what expectations of privacy there might or might not be in each step.

It might appear that Jones will have a greater advantage if the Court were to focus intently (and perhaps exclusively) upon the initial installation issue. It could well be quite easy for the Court to conjure up an image of police sneaking around in the dead of night, putting a device under a car without a warrant or consent, in order to turn the entire vehicle into a roving police informant. That some courts have, in fact, reacted negatively to the use of GPS tracking devices when the vehicle involved is on one’s home ground does suggest that the vehicle itself has some attributes of domestic privacy.

However, that kind of reasoning could be doomed, if the Court is to hold to the Knotts declaration, that once the vehicle rolls onto a public thoroughfare, it is fair game for any kind of police observation. And that, of course, is why United States v. Knotts looms so largely over United States v. Jones.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.